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England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Ong & Ors v Ping  EWHC 3258 (Ch) (11 November 2015)
Cite as:  EWHC 3258 (Ch)
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Fetter Lane, London, EC4A 1NL
B e f o r e :
| JANE REBECCA ONG
|- and -
|ONG SIAUW PING
and by Stephenson Harwood LLP for the Second, Third and Fourth Claimants) for
Mark Warwick QC and Henry Webb (instructed by Addleshaw Goddard LLP) for the Defendant
Hearing dates: 28 September and 5 October 2015
Crown Copyright ©
MR JUSTICE MORGAN:
The application for disclosure
(1) to give disclosure by means of a list of all documents under his control which were relevant to the question which remains to be determined as to what has happened to the proceeds of sale of Sheldon Avenue between the date of its sale and the present time, such documents to relate to the immediate proceeds of sale and all assets which represent the traceable proceeds of such proceeds of sale;
(2) to serve a witness statement which identifies all the steps which he took to search for the documents referred to in (1) above and the result of all such steps;
(3) to provide to the solicitors for the children copies of all documents included in the list served pursuant to (1) above;
(4) (in his capacity as personal representative of the estates of Madam Lim in Singapore and in England and Wales) to serve a witness statement which identified all steps taken by him to administer such estates and which gives full particulars of all distributions which have been made by him as personal representative of Madam Lim;
(5) (in his capacity as personal representative of the estates of Madam Lim in Singapore and in England and Wales) to provide to the solicitors for the children copies of all documents in his control relating to the matters referred to in (4) above.
(1) power to order a trustee to give disclosure to a beneficiary (including a discretionary beneficiary under a discretionary trust) of trust documents: see Schmidt v Rosewood Trust  2 AC 709;
(2) power to order disclosure for the purpose of ascertaining the whereabouts of trust property or its traceable proceeds where there is an allegation that a person is in possession of the trust property or its traceable proceeds; see White Book Vol. 2 paragraph 15-75 (at page 3350), citing Bankers Trust Co v Shapira  1 WLR 1274;
(3) power to make an order, ancillary to a freezing order, requiring disclosure either under section 37 of the Senior Courts Act 1981 or the court's inherent jurisdiction;
(4) power to order disclosure which is ancillary to the intended execution of a judgment of the court; see Maclaine Watson v International Tin Council (No. 2)  Ch 286;
(5) powers in relation to disclosure under CPR Part 31.
(1) for the purpose of these orders, in particular the orders in paragraphs 12(1) and 12(5) above, I hold that all of Madam Lim's documents in Singapore are within the control of the Defendant;
(2) these orders are made in relation to the estates of Madam Lim in Singapore and England and Wales because it was Madam Lim who received the net proceeds of sale of Sheldon Avenue and it is therefore appropriate to have disclosure and information about the distributions in relation to those estates, of which the Defendant is a personal representative, for the purpose of assisting in the tracing of those proceeds of sale;
(3) I will not order the Defendant to become the personal representative of Madam Lim's estate which was outside Singapore or England and Wales and on the present evidence I am not satisfied that other documents which form part of her estate outside Singapore or England and Wales are within his control for the purpose of these orders.
The costs of separate representation of the Claimants: the submissions
(1) Jane and the children had acted irregularly by bringing proceedings in which they were all Claimants but using two firms of solicitors;
(2) the right response to that irregularity was to rule that the Claimants were only entitled to recover the costs involved in instructing one of those firms;
(3) even if the conduct of the Claimants had been regular, or the irregularity could be overlooked, it would still not be right to award the Claimants two sets of solicitors' costs;
(4) in any event, I should give guidance to the costs judge as to how he should approach the detailed assessment in this case, in particular by being astute to detect and to disallow costs which might have been duplicated.
(1) there was no irregularity in the Claimants instructing two firms of solicitors;
(2) even if there had been such an irregularity, it had caused no difficulty, in particular no difficulty which should affect the detailed assessment of costs actually incurred by the Claimants;
(3) any irregularity which there might have been had been waived by the Defendant and so it was irrelevant;
(4) this is a proper case in which to allow two sets of costs, in particular, the costs of two firms of solicitors;
(5) it will be for the costs judge to consider what to do in response to any assertion that costs have been duplicated although if I were persuaded that it were possible to give guidance to the costs judge, which would be likely to be helpful to him, then I could do so.
Separate representation: the facts
Separate representation: discussion and conclusions
(1) it was not regular and not proper practice that two firms of solicitors should be placed on the record as representing Mr Lewis and the company separately;
(2) it might have been argued in that case that the defendants had acquiesced in the position and waived any rights they might have had to object;
(3) the court itself had an interest in having actions properly constituted and the situation in that case was irregular;
(4) he was not saying that it was impossible ever in any case to have separate representation, wholly or partially, in a consolidated action;
(5) the case of Healey v A Waddington & Sons Ltd  1 WLR 688,  1 All ER 861n showed the possibility of partial separate representation in consolidated actions;
(6) in the case before the court, separate representation would be extremely inconvenient and awkward and many difficult problems would arise; the possible problems referred to related to opening speeches, cross-examination, the asking of leading questions and final speeches;
(7) the action was not properly constituted where the plaintiffs were represented by separate solicitors;
(8) he did not encourage an application to be made for complete or partial separate representation as he did not see how it could work in that case.
"44.3. Basis of assessment
(1) Where the court is to assess the amount of costs (whether by summary or detailed assessment) it will assess those costs—
(a) on the standard basis; or
(b) on the indemnity basis,
but the court will not in either case allow costs which have been unreasonably incurred or are unreasonable in amount.
(Rule 44.5 sets out how the court decides the amount of costs payable under a contract.)
(2) Where the amount of costs is to be assessed on the standard basis, the court will—
(a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and
(b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.
(Factors which the court may take into account are set out in rule 44.4.)
(5) Costs incurred are proportionate if they bear a reasonable relationship to—
(a) the sums in issue in the proceedings;
(b) the value of any non-monetary relief in issue in the proceedings;
(c) the complexity of the litigation;
(d) any additional work generated by the conduct of the paying party; and
(e) any wider factors involved in the proceedings, such as reputation or public importance.
(7) Paragraphs (2)(a) and (5) do not apply in relation to—
(a) cases commenced before 1st April 2013; or
(b) costs incurred in respect of work done before 1st April 2013,
and in relation to such cases or costs, rule 44.4.(2)(a) as it was in force immediately before 1st April 2013 will apply instead."
"44.4. Factors to be taken into account in deciding the amount of costs
(1) The court will have regard to all the circumstances in deciding whether costs were—
(a) if it is assessing costs on the standard basis—
(i) proportionately and reasonably incurred; or
(ii) proportionate and reasonable in amount, or
(b) if it is assessing costs on the indemnity basis—
(i) unreasonably incurred; or
(ii) unreasonable in amount.
(2) In particular, the court will give effect to any orders which have already been made.
(3) The court will also have regard to—
(a) the conduct of all the parties, including in particular—
(i) conduct before, as well as during, the proceedings; and
(ii) the efforts made, if any, before and during the proceedings in order to try to resolve the dispute;
(b) the amount or value of any money or property involved;
(c) the importance of the matter to all the parties;
(d) the particular complexity of the matter or the difficulty or novelty of the questions raised;
(e) the skill, effort, specialised knowledge and responsibility involved;
(f) the time spent on the case;
(g) the place where and the circumstances in which work or any part of it was done; and
(h) the receiving party's last approved or agreed budget.
(Rule 35.4(4) gives the court power to limit the amount that a party may recover with regard to the fees and expenses of an expert.)"
"What then is the proper approach? As in all questions to do with costs, the fundamental rule is that there are no rules. Costs are always in the discretion of the court, and a practice, however widespread and longstanding, must never be allowed to harden into a rule. But the following propositions may be supported.
(1) The Secretary of State, when successful in defending his decision, will normally be entitled to the whole of his costs. He should not be required to share his award of costs by apportionment, whether by agreement with other parties, or by further order of the court. In so far as the Court of Appeal in the Wychavon District Council case may have encouraged or sanctioned such a course, I would respectfully disagree.
(2) The developer will not normally be entitled to his costs unless he can show that there was likely to be a separate issue on which he was entitled to be heard, that is to say an issue not covered by counsel for the Secretary of State; or unless he has an interest which requires separate representation. The mere fact that he is the developer will not of itself justify a second set of costs in every case.
(3) A second set of costs is more likely to be awarded at first instance, than in the Court of Appeal or House of Lords, by which time the issues should have crystallised, and the extent to which there are indeed separate interests should have been clarified.
(4) An award of a third set of costs will rarely be justified, even if there are in theory three or more separate interests."
"It seems to me that the governing principle should be that where there are two or more parties fighting a common enemy, unless there are special circumstances, the court should lean in favour of one set of costs. One can always say that the second party might be better off if they had their own particular legal team. I am not always sure that is true: too many cooks often spoil the broth. Even assuming that a party might be slightly better off, unless there is a real conflict, genuinely justified by separate sets of lawyers, I think the better view is the parties should be under pressure to agree there should be one set of lawyers to face the common enemy. I think the court should be reluctant to grant two sets of costs."
"70 In my view the governing principle enunciated by the judge is too broadly stated. The governing principle is that the losing party should only be required to pay the costs reasonably incurred by the other party or parties. No doubt parties should be under pressure only to instruct one set of lawyers to face a common enemy, as to do otherwise could result in an unreasonable expenditure of costs for which the losing party should not pay. But it does not follow that successful defendants, even if they adopt a common approach, should be invariably deprived of part of their costs.
71 In the present case the appellants chose to fight the issues of infringement and validity against two defendants. No complaint was made, nor could it have been made, that both instructed solicitors and counsel to advise them and to serve defences. The complaint upheld by the judge was that sometime in February, before the trial in July 1998, that position changed and it became unreasonable for the defendants to be represented by their own solicitors and counsel. That being so, it was not reasonable for the appellants to pay both sets of costs. What was it that meant that it was unreasonable for one of the parties to continue to be separately represented? The judge did not answer that question, except to say that he was not saying that the solicitors acted improperly. His conclusion depended upon what he thought was reasonable for the losing party to pay, not upon an assessment as to whether one of the respondents had acted unreasonably. That became evident in the discussion after judgment when [counsel], who appeared for the respondents, raised the difficult questions as to how the respondents were to split the one payment of costs between them in the absence of agreement. That resulted in the judge ordering that how the one set of costs was to be split between them "was a matter for them". Did he expect that if agreement was not reached, the actual split would have to be decided by litigation? I am not sure how that would be done as he did not give them liberty to apply to him for that purpose.
72 [Counsel for the appellants] supported the judge's conclusion that from February 1998 the appellants should only be liable to pay one set of costs as that was the amount that it was reasonable for a claimant to pay. I disagree. A losing claimant should ordinarily pay the costs reasonably incurred by the parties that he takes proceedings against. What costs are reasonably incurred by one or more defendants should be ascertained by the costs judge who carries out the assessment. Upon such an assessment duplication and failure to co-operate can be seen and adjustments made accordingly. To decide what costs were reasonably incurred by defendants by considering what costs a losing client should pay, amounts to pre-judging the results of a detailed assessment without considering the facts. The judge's conclusion involved, by implication, a decision that the costs of one or both of the respondents had been unreasonably incurred. That could not have been inferred from the fact that they had separate solicitors and counsel and he had no evidence before him to enable him to reach that decision. No such conclusion could be reached without looking at the full picture which of course would be done by the costs judge on a detailed assessment.
73 I would discharge the costs order made by the judge upon the basis that he approached the issues between the parties on the wrong basis. Successful parties are ordinarily entitled to their costs reasonably incurred. If there be evidence before the judge that certain costs do not fall within that category, then they should be disallowed. In this case there was no such evidence and therefore the matter had to be left to the costs judge when carrying out the detailed assessment. Of course it is always open to the judge to draw attention in his judgment to matters which he believes require particular investigation during assessment. I would therefore substitute for the judge's orders as to costs an appropriate order for the costs of the respondents to be paid by the appellants."
(1) costs will be recoverable only to the extent that they were reasonably incurred;
(2) the court will resolve any doubt as to whether costs were reasonably incurred in favour of the paying party;
(3) where the receiving parties were separately represented, the court will give them the opportunity to explain their case as to why the costs of the separate representation were reasonably incurred;
(4) it may often be appropriate for that opportunity to be given in the course of a detailed assessment by a costs judge but there is no reason in principle why the matter should not be capable of being considered by the judge who is asked to make an order or orders for costs;
(5) if the court considers that the costs of separate representation exceeded what was reasonably necessary to present the Claimants' case and protect their interests, then the court will conclude that the additional costs (in excess of the costs which would have been incurred if the Claimants had instructed a single firm of solicitors) were not reasonably incurred and those costs will be disallowed.
(1) the separate representation of the Claimants was probably irregular;
(2) the Defendant waived that irregularity, so far as it was a matter for him;
(3) the separate representation did not create any difficulties for the court;
(4) if the Claimants had applied for the permission of the court to enable them to be separately represented, the court would probably have refused to grant that permission.
"A decision was reached in 2013 whereby the costs of disclosure would be borne principally by Stephenson Harwood and those of witness statement preparation by Isadore Goldman. Additionally, Stephenson Harwood was the lead firm in dealing with the trial bundle preparation. As regards responsibility for payment of counsel's fees, this fell to Stephenson Harwood up to May 2014 and to Isadore Goldman thereafter."